Toltec Ranch Co. v. Babcock , 24 Utah 183 ( 1901 )

BARTCH, J.,

having made a statement of the case as above, delivered the opinion of the court.

The appellant in the first instance insists that the court-erred in granting a trial by jury at the request of the defendant, without advancing the jury fees required by section 3129, Revised Statutes. The answer to this contention is that 1 the affidavit of impecuniosity filed by the defendant relieved the party from the necessity of complying with the requirements of that section, such affidavit being provided for in sections 1016-1018, Revised Statutes. Upon the filing of the affidavit such fees became taxable as costs, under section 1019, Revised Statutes, at the close of the trial. Hoagland v. Hoagland, 18 Utah 304, 54 Pac. 978.

The controlling question in this case is whether Louisa Babcock’s long-continued possession and use of the land in dispute were of such a character as to ripen into a title by virtue of the statute of limitations. The provisions of that statute which are material here are found in sections 3131-3133, 3137, Compiled Laws Utah 1888, and like provisions in sections 2859-2861, 2865, Revised Statutes. These sections fix the period of limitation as to real property at seven years, and under their provisions, where such property is held and possessed adversely to the legal title for that length of time, the party so holding and possessing acquires the title to the property by adverse possession. As to what constitutes adverse possession of real property, it is provided in section 2865, Revised Statutes, as follows: “Eor tbe purpose of constituting an adverse possession by a person claiming title not founded upon a written instrument, judgment, or decree, land is deemed to have been possessed and occupied in the following cases only: 1. Where it has been protected by a substantial inclosure. 2. Where it has been usually cultivated or improved.” The statutory provisions are the same where a person claims title founded upon a written instrument. Section 2863, Rev. St. And the same provisions are found in sections 3135, 3137, Compiled Laws Utah 1888. It will thus be seen that under our statutory provisions, where a person claims title founded on a written instrument (m-iuxt^foaBded-aB-.a-written instrument, in either case the land is deemed to have been possesseH~ahd occupied adversely. "Where it has been protected by a substantial inclosure, or where it has been usually cultivated or improved and where such possession and occupancy have been so continued for more than seven years, the possession can not be disturbed by the person claiming the legal title. In the caSe at bar, the intervener claimed title to the land in dispute by gift from Chester Loveland, who, it seems, bought it from one Lish, without, however, obtaining any other title than such as the vendor had by right of possession, the legal title to the land being then in the Central Pacific Railroad Company. The intervener thereafter always claimed the premises as her home. The land was protected by a fence — a substantial inclosure — cultivated, improved, and crops raised thereon by herself and husband for the family for admittedly more than twenty years. The land was occupied and used the same as other lands were in that neighborhood. The possession, as appears from the evidence, was open, notorious, uninterrupted, and peaceable, and under a claim of right. It must, therefore, necessarily be deemed 2 to have been adverse to the holder of the legal title, and such long-continued possession may be deemed to have been adverse though not in its character hostile. “Where one is shown to have been in possession of land for the period of limitation, apparently as owner, and such possession is not explained or otherwise accounted for, it will be presumed to have been adverse.1” 1 Am. and Eng. Enc. Law (2 Ed.), 889, 890; 3 Washb. Neal Prop. (4 Ed.), 159, par. 43. The possession and occupancy, under the circumstances herein admitted and proved, were notice to all the world of the possessor’s rights, and prima facie evidence of property, and of a seizin in fee; and, the longer the possession was continued undisturbed, the stronger became the conclusion that there was a legal origin for it. Busw. Lim., sec. 2. “Every possession is taken to be on the possessor’s own title until the contrary appears, as the possession is in itself the strongest evidence of the claim of title, and, when long continued, of the title also.” Jackson v. Hillsborough Com’rs, 18 N. C. 177. In Patterson v. Reigle, 4 Pa. 201, 45 Am. Dec. 684, on the question of adverse possession, Mr. Chief Justice GibsoN said: “There is a presumption, which lasts till it is rebutted, that an intruder enters to hold for himself; and it is not to be doubted that a trespasser entering to gain a title, though conscious that he is a wrongdoer, will accomplish his object, if the owner do not enter or prosecute his claim within the prescribed period. But to- do so it is necessary that his possession be adverse from the first, and to infer that he intended it to be otherwise, would impute to him an inconsistency of purpose.” Mr. Justice BaldwiN, in Boone v. Chiles, 10 Pet. 177, 223, 9 L. Ed. 388, speaking for the Supreme Court of the United States, said: “The possession of land is notice of a claim to it by the possessor. Sugd. Vend., 753. If not taken and held by contract or purchase, it is from its inception adverse to all the world, and in twenty years bars the owner in law and equity.” Busw. Lim., sec. 242; Ruffin v. Overby, 88 N. C. 369; Stock Co. v. Dixon, 10 Utah 334, 37 Pac. 573; Ricard v. Williams, 7 Wheat. 59, 5 L. E. 398; Bow man v. Wathen, 1 How. 189, 11 L. Ed: 97; Lampman v. Van Alstyne, 94 Wis. 417, 69 N. W. 171; Talbert v. Singleton, 42 Cal. 390. But counsel for the appellant insist, that the statute of limitations could only begin to run from the issuance of patent, and that, therefore, the defense of adverse possession must fail. This position would be sound if 3 the legal title to the land had remained in the United States until the patent was issued; but such was not the case. The land in controversy constituted part of the lands granted by Congress to the Central Pacific Eailroad Company. The original grant was made by the Act of July 1, 1862 (12 Stat. 489), and the amount of that grant was enlarged by the Act of July 2, 1864 (13 Stat. 356). The grant was one in praesentij and vested the legal title to the land in the railroad company, subject to some conditions relating to the construetion of the line of railroad, and the identification of the lands. The lands which passed by the grant became identified October 20, 1868, the date of the filing of the map of definite location in the office of the Secretary of the Interior. Tarpey v. Madsen, 178 U. S. 215, 20 Sup. Ct. 849, 44 L. Ed. 1042. Upon their identification, and the location and construction of the road, the title vested in the grantee as of the date of the grant, and the patent thereafter issued by the government was not essential to vest the legal right, but it constituted evidence that the conditions of the grant had been complied with by the grantee, and to that extent relieved the grant from the possibility of forfeiture for failure to comply with those conditions. The grantee, thus being vested with the legal title, had the right to enter upon the land, occupy, and use it after identification, the same as after the patent had been issued. On this subject, Mr. Justice Eield, delivering the opinion of the court in Salt Co. v. Tarpey, 142 U. S. 241, 12 Sup. Ct. 158, 35 L. Ed. 999, after a review of the authorities, said: “It would, therefore, seem clear that the title which passed under the act of Congress by the grant of the odd sections became by their identification so far complete as to authorize the grantee to take possession and make use of the lands; and in the exercise of that authority the grantee took possession from time to time as the lands became identified by the location of the line of road, and made sales of parcels of the lands, and executed mortgages on other parcels with sections of the road constructed, for the purpose of raising money to meet expenses already incurred and which might thereafter be required for the completion of the road; and such mortgages were authorized by Congress.” Again, in the same case, that eminent jurist said: “While not essential to transfer the legal right, the patents would be evidence that the grantee had complied with the conditions of the grant, and to that extent that the grant was relieved from the possibility of forfeiture for breach of its conditions. They would serve to identify the lands as coterminpus with the road completed. They would obviate the necessity of any other evidence of the grantee’s right to the lands, and they would be evidence that the lands were subject to the disposal of the railroad company with the consent of the government. They would thus be, in the grantee’s hands, deeds of further assurance of his title, and therefore a source of quiet and peace to him in its possession.” So Mr. Justice Brewer, in speaking for the court in Tarpey v. Madsen, 178 U. S. 215, 20. Sup. Ct. 849, 44 L. Ed. 1042, said: “And surely Congress, in making a grant to a railroad company, intended that it should be of present force, and of force with reasonable. certainty. It meant a substantial present donation of something which the railroad company could at once use, and use with knowledge of that which it had received.” Van Wyck v. Knevals, 106 U. S. 360, 1 Sup. Ct. 336, 27 L. Ed. 201; Railway Co. v. Dunmeyer, 113 U. S. 629, 5 Sup. Ct. 566, 28 L. Ed. 1122; Wisconsin Cent. R. Co. v. Price Co., 133 U. S. 496, 10 Sup. Ct. 341, 33 L. Ed. 687. The railroad company having had, as we have seen, tbe legal title to the land in dispute at least from time of the filing of the map of definite location with the Secretary of the Interior, and haying had the right to enter upon, 'occupy, and use the land, there would seem to be neither reason nor authority to hold that the statute of limitations did not run against the company and its grantee as well before as after the issuance of the patent, and this even- though the- in-tervener may have supposed that her title was subordinate to that of the United States; for possession held in subordination to the title of the government may be adverse as to another claimant. Francoeur v. Newhouse, 14 Sawy. 600 (C. C.) 43 Red. 236; 9 Am. and Eng. Ency. Law, 58; Hayes v. Martin, 45 Cal. 559.

Erom the foregoing considerations, and from a careful examination of the proof, we are of the opinion that the inter-vener is entitled to hold the land in controversy, and the crops raised thereon, by adverse possession, and that, as against the plaintiff, she has the absolute title thereto. We see nothing in the record which justifies a reversal. The judgment is affirmed, with costs.

MINEE, C. L, and BASKIN, L, concur.